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Instrument Control Number
007239
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Commonwealth of Land Record Instrumentsrginia Iplp�[�[ i[i[7]I�Ill�lll��llpplpl�pllpllll�l�ll�l�ll
J Doc ID: 033387400003 Type: DEE .
Cover Sheet-Form A i, Recorded: 07/08/2016 at 03:66:09 PM
I Fee Ant: $4,376.33 Page 1 of 3
Albemarle County, VA
[ILS VLR Cover SheetAgent 1.0.661 Filet 2016 Circuit
T C Date of Instrument:• [7/1/2016 ] BK4783 P0672-674
I
•
' X AO instrument'Pipe: PBS ]• - - •- '-- - - ---�
P 1 '
E Number of Parcels [ 1] .
B Number of Pages [ 2]
M City ❑County® [Albemarle County ] . (Box for Deed Stamp Only)
P T First and Second 9rantors '
— — Last Name _First Name I Middle Name or initial • Suffix
[WESTFIELD PARTNER ][ ][ ][ ]
11
II
• First and Second Grantees
First Name i Middle Name or Initial Suffix
❑ ❑ [CHALLENGER WAY LLC]( I[ ][ ]
❑ ❑ 1 11 If ' • I[ 1
Grantee Address (Name) [CHALLENGER WAY LLC ]
(Address 1) [442 Westfield Road ]
(Address 2) [ ]
(City,State,Zip) [Charlottesville ] [VA ] [22902 ]
Consideration[1,000,000.00 ]Existing Debt[0.00 ] Assumption Balance [0.00 ]
Prior Instr.Recorded at:City 0 County 0 [ ] Percent in this Juris. [ 100]
Book [ ] Page [ ] Instr.No [ ]
Parcel Identification No(PIN) [061W0-01-0C-00100 ]
Tax Map Num. (If differentthen-PIN) [same 1
Short Property Description [Lot 7,Block C,Section One,Westfield,containing 33,118 sq.ft.,mg
[ I
Current Property Address (Address 1) [442 Westfield Road I
(Address 2) [ . ]
• (City,State,Zip) [Charlottesville ][VA ][22901 ]
Instrument Prepared by [Mary Susan Payne Esq ]
Recording Paid for by [McCallum&Kudravetz PC ]
Return Recording to (Name) [McCallum&Kudravetz PC ]
(Address 1) [250 East High Street 'I
(Address 2) [ I
.(City,State,Zip) [Charlottesville ][VA ][22902 ]
Customer Case ID [ ] I ][ ]
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lit
Cover Sheet Page#7of1 if, `'€l
007239
PREPARED BY MARY-SUSAN PAYNE,ESQUIRE
1800 Dairy Road,Charlottesville,Virginia 22903
Virginia Bar Number 23512
Stewart Title Guaranty Company,Underwriter
Assessed value: $854,800.00
Tax Map#061W0-01-0C-00100
The preparer of this document has been engaged solely for the purpose of preparing this instrument,has prepared the
instrument only from the informatio given and has not been requested to provide,nor has the preparer provided,an
examination of the legal description, opinion on title or advice on the tax,legal or non-legal consequences that
may arise as a result of the conveyan nor has such preparer verified the accuracy of the amount of consideration
stated to have been paid or upon whi-h any tax may have been calculated.
THIS DEED,made th_s 1st day of July,2016,by and between WESTFIELD
PARTNERS LLC,a Virginia
limited liability company,Grantor,and CHALLENGER WAY
LLC,a Virginia limited liabil}ty company, Grantee,whose mailing address is:442 Westfield
Road,Charlottesville,VA 22902.
WITNESSETH:
THAT FOR AND IN CONSIDERATION of One Million and NO/100 Dollars
($1,000,000.00);cash in hand paid,the receipt of which is hereby acknowledged, the Grantor
does hereby GRANT,BARG , SELL AND CONVEY with GENRAL WARRANTY and
ENGLISH COVENANTS O TITLE,to the Grantee,the following real property:
All that certain lot or arcel of land,with improvements thereon and appurtenances
thereto,situated in Altiemarle County,Virginia,in Westfield Subdivision,designated
as Lot 7,Block C, Section One,Westfield, containing 33,118 square feet,more or
less,as shown on a plait by B.Aubrey Huflinan&Associates,Ltd.,dated September
10, 1981, of record in the Clerk's Office of the Circuit Court of Albemarle County,
Virginia,in Deed Book 727,page 333;being further described and shown on a plat
of B.Aubrey Huffman&Associates,Ltd.,dated December 9, 1986,and recorded in
the aforesaid Clerk's Office in Deed Book 913, page 497. The subject property is
known by present street numbering as 442 Westfield Road, Charlottesville, VA
22901.
Being the same property conveyed to the Grantor herein by deed of Gerald W.
Northcutt and Frank C.Byers,Jr.,dated May 14,2003,recorded May 14,2003,in the
Clerk's Office of the Circuit Court of the County of Albemarle,Virginia, in Deed
Book 2458,page 460.
The property hereby conveyed is subject to all easements, restrictions, reservations,
agreements and conditions contained in duly recorded deeds, plats, and other instruments
constituting constructive notice in the chain of title to the above-described property.
IN WITNESS WHEREOF,the Grantor has caused this instrument to be executed in the
appropriate company name by the duly authorized manager:
WESTFIELD PARTNERS LLC a Virginia limited liability company
By: ,U6t4 t&4m4.79e (SEAL)
Gerald W.Northcutt,Manager
STATE OF VIRGINIA 11 _
CITI7COUNTY OF S'c14c'. ,to-wit:
The foregoing Deed was acknowledged before me Cdh d.; o uly,2016 by Gerald W.
Northcutt as Manager of Westfield Partners,LLC a Virginia lira ted Ii:bility company.
My Commission expires:12131(1. I \
Notary Number:73l(0#-{ 4
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En: 7515044 °6'
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=3i COMMISSION :Z_=
-$=• EXPIRES i(jif
42•'12/31/2016:'tiQ•�� .. _.._ _
tee ........••FJ`� RECORDED IN CLERIC:506DL:N0079s FFICE OF
,,4LTM'1Ot# ALBEMARLE A 2016at3:5 PMQUIRE� YVAC §58 "62STATE: pLOCSOD.00
--"W T•RLE COUNTY,VA
G CI-CUIT CLERK
0C
Receipt:17000007783 Page 1 of 1
9 S
OFFICIAL RECEIPT
ALBEMARLE CIRCUIT COURT
MISCELLANEOUS
DATE: 11/02/2017 TIME: 09:56:38 CASE#: 003CGM170001046
RECEIPT#: 17000007783 TRANSACTION#: 17110200004
CASHIER: EMJ REGISTER#: A479 FILING TYPE: OTH TYPE: FULL PAYMENT
ACCOUNT OF: WRIGHT,STUART
RECEIVED OF: WRIGHT,STUART
CASH: $2.00
ACCOUNTS 'ACCOUNT -
' DESCRIP-'f10N PAID' DESCRIPTION - PAID
236 DOCUMENT REPRODUCTION COSTS $2.00 315 MISCELLANEOUS FEES&COMMISSIONS $0.00
415 SECURED REMOTE ACCESS $0.00
TENDERED :$ 2.00
AMOUNT PAID :$ 2.00
PAYOR'S COPY CLERK OF COURT:JON R. ZUG RECEIPT COPY 1 OF 3
sit. ' a/ a -4cD 2 '
OPERATING AGREEMENT
OF
CHALLENGER WAY LLC
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 1
ARTICLE II. ORGANIZATION,PURPOSE AND POWERS OF COMPANY 3
•
ARTICLE III. NAMES,ADDRESSES AND MEMBERSHIP INTERESTS
OF INITIAL MEMBERS;PRINCIPAL OFFICE •4
ARTICLE IV. VOTING POWERS OF MEMBERS,MEETINGS,ETC 5
ARTICLE V. MANAGEMENT - 7
ARTICLE VL CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS 11
ARTICLE VII. RECORDS,REPORTS,ETC . . 13
ARTICLE VIII. ASSIGNMENT;RESIGNATION 14
ARTICLE DC DISSOLUTION AND TERMINATION 19
ARTICLE X. MISCELLANEOUS PROVISIONS 21
THIS OPERATING AGREEMENT OF CHALLENGER WAY LLC (the "Agreement')
Is entered into effective as of the J)7 day of June,2016 by Matthew C. Stimart(the"Member")
who agreed to form a limited liability company and become a member of CHALLENGER WAY
LLC, a Virginia limited Iiability company (the "Company"), upon the following 'terms and
conditions:
RECITALS
The Member has caused the Company to be organized as a limited liability company
under the Act, as defined in Section 1.01 below, effective as of the date of the issuance of the
Company's. certificate .of organization by the State Corporation. Conunission of the
Coninionwealth:of Virginia on June Lit 2016, and he wishes tb enter into this Agreement in
order to set forth the terms and conditions on which the management, business and fmancial
affairs of the Company shall be conducted.
AGREEMENT
NOW,THEREFORE, in consideration of the foregoing recitals and the mutual promises,
covenants and conditions herein contained, the receipt and sufficiency of which are hereby
acknowledged,the Member does hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.01 The following terms used in this Agreement shall have the following meanings
• (unless otherwise expressly provided herein):
•
(a) "Act"shall mean the Virginia Limited Liability Company Act,Va. Code §
13.1-1000 et seq. , as amended and in force from time to time.
(b) "Agreement" shall mean this Agreement, as originally executed and as
amended from time to time.
(c) "Articles" shall mean the articles of organization of the Company, as
amended and in force from time to time.
(d) "Bankruptcy" shall mean the entry of an order for relief with respect to a
Member in proceedings under the United States Bankruptcy Code, as amended or superseded
from time to time.
(e) "Buy-out Event"shall mean:
(i) The filing of an application by a Member for, or its consent to,the
appointment of a trustee,receiver,or custodian of its assets;
(ii) The making by a Member of a general assignment for the benefit of
creditors;
(iii) The entry of an order, judgment, or decree by any court of
competent jurisdiction appointing a trustee, receiver, or custodian of the assets of
a Member unless the proceedings and the person appointed are dismissed within
ninety(90)days;
•
(iv) The failure by a Member generally to pay its debts as the debts
• become due within the meaning of Section 303(h)(1) of the United States
Bankruptcy Code, or a member's admission in writing of its inability to pay its
debts as they become due;
(v) A Member's Interest becoming subject to the enforcement of any
rights of a creditor of a Member,whether arising out of an attempted charge upon
that Member's Interest by judicial process or otherwise, if that Member fails to
effectuate the release of those enforcement rights, whether by legal process,
bonding,or otherwise, within ninety(90) days after actual notice of that creditor's
action;or
(vi) The Bankruptcy of a Member.
(f) "Capital Account' shall mean as of any given date the amount calculated
and maintained by the Company for each Member as provided in Section 6.04 hereof.
(g) "Capital Contribution" shall mean any contribution to the capital of the
Company by a Member in cash,property or services, or a binding obligation to contribute cash,
property or services, whenever made. "Initial Capital Contribution" shall mean the initial
contribution to the capital of the Company by a Member,as determined pursuant to Section 6.01
hereof.
(h) "Code" shall mean the Internal Revenue Code of 1986 or corresponding
provisions of subsequent superseding federal revenue laws,as amended from time to time.
(1) "Company" shall mean CHALLENGER WAY LLC, a Virginia limited
liability company.
2
G) "Entity" shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust, cooperative or other
association.
(k) "Member" shall mean each Person that is identified as an initial Member
in Article III hereof or becomes an additional or substituted Member under this Agreement.
(1) "Membership Interest" shall mean the ownership interest of a Member in
the Company, being a percentage equal to such Member's Capital Account divided by the
aggregate Capital Accounts of all Members. The Membership Interests may be recorded from
time to time on a schedule attached to this Operating Agreement.
(m) "Person" shall mean any natural person or Entity, and the heirs, executors,
administrators,legal representatives,successors,and assigns of such Person where the context so
admits.
ARTICLE II
ORQANIZATION,PURPOSE AND POWERS OF COMPANY
2.01 Organization. The Company was organized as a Virginia limited liability
company by the filing of Articles of Organization in the office of the State Corporation
Commission for the Commonwealth of Virginia effective on June;At 2016. The operation of
the Company shall be governed by the teens of this Agreement and the provisions of the Act.
2.02 Business Conducted in the Name of the Company. All Company business must
be conducted in the name of the Company or such other names that comply with applicable law
as the Members may select from time to time. Title to all assets of the Company shall be taken
and held only in the name of the Company.
2.03 Purpose.The purposes of the Cdlupany shall be to:.
(a) own, operate and lease a commercial property located at 442 Westfield
Road,Charlottesville 22901;and
(b) conduct any or all lawful business for which limited liability companies
may be organized in the.Commonwealth of Virginia.
2.04 powers. The Company shall have all powers and rights of a limited liability
Company organized under the Act,to the extent such powers and rights are not prescribed by the
Articles. To the extent permitted by the Act, the terms and provisions of this Agreement shall
control if there is a conflict between the Act and this Agreement.
3
ARTICLE III
NAMES,ADDRESSES AND MEMBERSHIP INTERESTS OF INITIAL,MEMBERS;
PRINCIPAL OFFICE:
3.01 Names,Addresses and Membership Interests: The name and address of the initial
Members are Matthew C. Stimart, social security number 471-86-3026, and Susan C. Stimart,
social security number 452-69-8573, both residing at 132 Oak Forest Circle,Charlottesville,VA
22901. The Members shall have membership interests proportional to their initial contributions
specified on Exhibit A.
3.02 Principal Office,The principal office of the Company shall initially be at 442
Westfield Road,Charlottesville 22901. The principal office may be changed from time to time
by the Members.
3.03 Registered Office and Registered Agent. The registered office of the Company in
the Commonwealth of Virginia is 442 Westfield Road, Charlottesville 22901, and the registered
agent at such office shall be Matthew C. Stimart. The Members may change the registered office
and/or the registered agent from time to time.
3.04 Duration. The Company shall commence on the date the Articles are accepted for
filing by the State Corporation Commission of the Commonwealth of Virginia and shall continue •
in existence for perpetuity.
3.05 Fiscal Year, The Company's fiscal year shall commence on January 1 and end on
December 31.
ARTICLE IV
VOTING POWERS OF MEMBERS;MEETINGS,ETC.
4.01 In General. No Member shall be entitled to participate in the day-to-day affairs
and management of the Company, but instead, any Member's right to vote or otherwise
participate with respect to matters relating to the Company shall be limited to those matters as to
which the express terms of the Act, the Articles or this Agreement vest in any Member the right
to so vote or otherwise participate.
4.02 Actions Requiring-Unanimous Approval of Members. Unless the express terms
of this Agreement specifically provide otherwise, a unanimous vote of the Members shall be
necessary in order to approve or consent to any of the matters set forth in this Section 4.02:
(a) Amending the Articles or this Agreement in any manner that alters the
preferences,privileges or relative rights of any Member.
4
(b) Electing and removing any officer of the Company.
(c) Taking any action which would make impossible to carty on the ordinary
business of the Company.
(d) Confessing a judgment against the Company.
(e) Filing or consenting to filing a petition for or against the Company under
any federal or state bankruptcy, insolvency or reorganization act or electing to dissolve the
Company.
(f) Loaning Companyfunds to any Member.
(g) Admitting a new Member into the Company,
(h) Requiring additional capital contributions from the Members.
(i) Making tax elections under the Code.
4.03. [reserved]
404 Action bv.Members, Any approval or action that under this Agreement may be
given or taken by Members holding a specified percentage of the Membership Interests may be
given or taken without a meeting but with the written consent or approval of Members holding
that specified percentage of Membership Interests. In exercising their rights as provided above,
the Members shall act collectively through meetings and/or written consents as provided in this
Article.
4.05 Meetings. Meetings of the Members, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by any Member holding 50% or greater of
Membership Interests.
4.06 Place of Meeting. The place of any meeting of the Members shall be the principal
office of the Company,unless another place is designated by the President,
4.07 Notice of Meetings. Written notice stating the place,day and hour of any meeting
of the Members shall be delivered not less than 5 or more than 60 days before the date of the
meeting, either personally or by mail, to each Member, unless the Act or the Articles require
more notice to be given.. Telephonic notice of meetings shall also be given 48 hours prior to the
meeting to each Member.
4.08 Conduct of Meetings. All meetings of the Members shall be presided over by a
chairperson of the meeting,who shall be the President,or a Member designated by the President.
5
The chairperson of any meeting of the Members shall determine the order of business and the
procedure at the meeting, including regulation of the manner of voting and the conduct of
discussion;and the'secretary shall take minutes thereof.
4:09 Participation by Telephone or Similar Communications:. Members may
participate and hold a meeting by means of conference telephone or similar communications
equipment by Means:of which. all Members participating can hear and be heard, and such
participation shall constitute attendance and presence in person at such meeting.
4.10 Waiver oft btice. When any notice of a meeting of the Members is required to be
given,a waiver thereof in writing signed by a Member entitled to such notice, whether given
• before, at, or after the time of the meeting as stated in such notice, shall be equivalent to the
proper giving of such notice: Participation at any:meeting shall constitute°waiver:of any notice,
unless such Member participates solely for the purpose of challenging the sufficiency of such
notice.
ARTICLE V
MANAGEMENT.
5.01 Manaaemeet: The Members shall elect officers who shall manage the business
and affairs of the Company. Subject to the restrictions in Article IV,the officers are granted the
right,power, and authority to do in the name of,and on behalf of,the Company all things that,in
their sole judgment,are necessary,proper,or desirable to carry out the purposes of the Company.
5.02 Officers. The officers of the Company;shall consist of a president,a treasurer,,and
a secretary, or other officers or agents as may''be elected and appointed by the Members. A
Member may hold one or more offices. The officers shall act in the name of the Company and
shall supervise its operation,as set forth in this Agreement. An officer shall be a natural person
and not an Entity.
5.03 Election and Tenn of Office:: The officers of the Company shall be elected
annually by the Members. Vacancies may be filled at any meeting of the Members. Each officer
shall hold office until his death,until he shall resign,or until he is removed from office. Election
or appointment of an officer or an agent shall not of itself create a contract right.
5.04 Removal. Any officer or agent may be removed by the unanimous vote of
Members whenever they decide that the best interests of the Company would be served thereby.
Such removal shall be without prejudice to the contract rights,if any,of the person so removed.
5.05 President. The President shall be the chief executive officer of the Company and
shall preside at all meetings of the Members. Except as otherwise provided in the Act or in the
Agreement,the President is granted the right,power, and authority to do in the name of, and on
6
behalf of,the Company all things that,in his sole judgment,are necessary,proper or desirable to
carry out the purposes of the Company, including,but not limited to, entering into, making and
performing any contracts or agreements on behalf of the Company, borrowing money or
otherwise committing the credit of the Company for Company activities,voluntarily prepaying or
extending any such borrowings, and employing any persons, firms or corporations for the
operation and management of various aspects of the Company's business, on such terms and for
such compensation as may be agreed to on behalf of the Company. The President shall have
such other powers and perform such other duties as may be from time to time assigned by and
agreed to by the Members of the Company.
5.06 Treasurer. The Treasurer shall be the chief financial officer of the Company. The
Treasurer shall not be required to give a bond for the faithful discharge of his duties. The
Treasurer shall: (i)have charge and custody of and be responsible for all funds and securities of
the Company; (ii) in the absence of the President, preside at meetings of the Members; (iii)
collect funds due to the Company and receive and give receipts for moneys due and payable to
the Company from any source whatsoever, open and maintain bank accounts, investment
accounts and other arrangements, and deposit all such moneys in the name of the Company in
such banks,trust companies or other depositaries as shall be selected by the Treasurer;(iv)draw
and sign checks for checks for paying the debts and obligations of the Company; and (v) in
general perform all duties incident to the office of treasurer and such other duties as from time to
time may be assigned by the Members of the Company.
5.07 Secretary. The Secretary shall: (i)keep the minutes of the Members' meetings in
one or more books provided for that purpose;(ii)see that all notices are duly given in accordance
with the provisions of this Agreement or as required by law;(iii)be custodian of the Company
records; (iv) keep a register of the post office and electronic mail address of each Member; (v)
certify the Members' resolutions and other documents to the Company as true and correct; (vi)in
the absence of the President and Treasurer, preside at meetings of the members and (vii) in
general perform all duties incident to the office of secretary and such other duties as from time to
time may be assigned by the Members.
5.08 Reliance by Other;Persons. Any Person dealing with the Company, other than a
Member,may rely on the authority of a particular officer in taking any action in the name of the
Company, if such officer provides to such Person a copy of the applicable provision of this
Agreement and/or the resolution or written consent of the Members granting such authority,
certified in writing by such Members to be genuine and correct and not to have been revoked,
superseded or otherwise amended.
5.09 Expenses and Fees. The Treasurer shall reimburse any Member or officer for
reasonable out-of-pocket expenses which were or, are incurred by the Member or officer on
behalf of the Company with respect to the start-up or operation of the Company, the on-going
conduct of the Company's business, or the dissolution and winding up of the Company and its
business within 30 days after written request together with submission of all receipts to the
Treasurer.
7
5.10 Competition• During the existence of the Company,the Members and the officers
shall devote such tine to the business of the Company as may reasonably be required to conduct
its business in an efficient and profitable manner. The Members and any officer, for his own
account and for the account of others,may engage in other business ventures, including,but not
limited to,other consulting and advisory business,which do not compete with the business of the
Company.
5.11 Indemnification.
(a) The Company shall, subject to the limitations of the Act and this Section
5.11, indemndfy, defend, and hold the officers and any Member of the Company harmless from
and against, and indemnify, defend and hold any Member and any officer of the Company
(collectively, the "Indemnitee" or "Indenmitees")harmless from and against, any loss,liability,
damage, fine, judgment,penalty, attachment, cost, or expense, including reasonable attorneys'
fees,arising from any demands,claims,or lawsuits against the Indemnitee,in or as a result of or
relating to its capacity, actions, or omissions as Member or as an officer of the Company, or
arising from or relating to the business or activities undertaken on behalf of the Company,
including, without limitation, any demands, claims, or lawsuits initiated by a Member or an
officer of the Company; provided that the acts or omissions of any Indemnitee seeking
indemnification are not found by a court of competent jurisdiction upon entry of a final judgment
to be the result of fraud,willful or knowing misconduct. The termination of any action,suit or
proceeding by judgment,order,settlement,plea of nolo contendere or its equivalent or conviction
shall not, of itself, create a presumption that the Indemnitee shall not be entitled to
indemnification hereunder.
(b) Any Indemnitee shall be entitled to receive,upon application therefore,to
the extent Company funds are available, advances from the Company to cover the costs of
defending any claim or action against any Indemnitee relating to the Indemnitee's acts or
omissions as a Member or an officer of the Company, provided that such advances shall be
repaid to the Company if the Indemnitee who receives such advance is found by a court of
competent jurisdiction upon entry of a final judgment to be not entitled to indemnification for the
reasons set forth in Section 5.11(a).
(c) In the event the indemnification obligation of this Section 5.11 shall be
deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable
portion shall be modified or stricken so as to give effect to this Section 5.11 to the fullest extent
permitted by law.
(d) The right of indemnification hereby provided shall not be exclusive of or
affect any other rights which the Indemnitee may have. Nothing contained in this Section 5.11
shall limit any lawful rights to indemnification existing independently of this Section 5.11.
8
(e) Notwithstanding anything contained herein to the contrary, any amount
which the Indemnitee is entitled to receive under this Section 5.11 shall be paid only out of the
assets of the Company and any insurance proceeds available to the Company for such purposes.
Notwithstanding anything contained herein to the contrary or under any law, no Member or
officer of the Company shall be personally liable for the payment of any amount which any
Indemnitee is entitled to receive under this Section 5.11, to make any capital contribution to the
Company or to return any capital distribution made to it by the Company or to restore any
negative capital account balance of that Member, to enable the Company to make any payment
under this Section 5.11.
5.12 Liability of any Officer. So long as any officer acts in good faith with respect to
the conduct of the business and affairs of the Company,no officer shall be liable or accountable
to the Company or to any of the Members,in damages or otherwise,for any error of judgment,
• for any mistake of fact or of law, or for any other act or thing which he may do or refrain from
doing in connection with the business and affairs of the Company, except for fraud or willful or
knowing misconduct and except for breaches of contractual obligations or agreements between
the officer and the Company.
5.13 Actions Ratified. All actions taken by any officer on behalf of the Company from
the date of its organization to the date of this Agreement are ratified and confirmed.
5.14 President as Attorney-in-Fact for Members.
(a) Each of the Members irrevocably constitutes and appoints,with full power
of substitution,the President,its true and lawful attorney-in-fact with full power and authority in
its name,place and stead to execute, certify, acknowledge, deliver, swear to, file, and record at
the appropriate public offices:
•
• (i) All certificates and other instruments and any amendment thereof,
which the President deems appropriate to form, qualify, or continue the business
of the Company as a limited liability company;
(ii) Any other instrument or document which may be required to be
filed by the Company under the laws of any state or which the President deems
advisable to file;and
(iii) Any instrument or document, including amendments to this
Agreement,which may be required to effect the continuation of the Company,the
admission of a substituted Member or successor officer, or the dissolution and
termination of the Company (provided such continuation, admission or
dissolution and termination arc in accordance with this Agreement), or to reflect
any reductions in the amount of capital of Members.
9
(b) It is expressly understood, intended and agreed by each Member for
himself, his successors and assigns that the grant of the power of attorney to the President
pursuant to subsection(a) is coupled with an interest, is irrevocable, and shall survive the death
or legal incompetency of the Member or such assignment of his Membership Interest.
(c) One of the ways that the aforementioned power of attorney may be
exercised is by listing the names of the Members and having the signature of the President, as
attorney-in-fact appear with the notation that the signatory is signing as attorney-in-fact of the
listed Members.
ARTICLE VI
CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS
6.01 Initial Capital. Contributions. Each Member, upon the execution of this
Agreement, shall make as an initial Capital Contribution the amount shown on Exhibit A,which
is attached hereto. The initial Capital Contribution to be made by any Person who hereafter is
admitted as a Member and acquires his Membership Interest from the Company pr from any
• Member shall be determined by the Members.
6.02 Additional Capital: Coritcibujionis When additional Capital Contributions are
• required, within thirty (30) days of the notice of the call, given bythe Treasurer, each Member
shall contribute its prorata share. Failure by a Member to fund such a Capital Contribution shall,
upon expiration of the time allowed for funding of such Capital Contribution, be deemed a
Notice of Withdrawal,unless the other Members contribute the unmet amount on a pro rata basis
based on each Member's membership Interest and the Membership Interest of each Member will
be adjusted accordingly, The fair market value of any property other than cash to be contributed
as an additional Capital Contribution shall be (a) agreed upon by all Members before
• contribution,or(b)determined by a disinterested appraiser selected by the President.
•
6.03 Interests„Mid Return of Capital Contribution, No Member shall receive any
interest on his Capital Contribution. Except as otherwise specifically provided for herein or as
unanimously agreed to by the Members,the Members shall not be allowed to withdraw or have
• refunded any Capital Contribution.
6.04 Capital Accounts. Separate Capital Accounts shall be maintained for each
Member in accordance with the following provisions:
(a) To each Member's Capital Account there shall be credited the fair market
value of such Member's Initial Capital Contribution and any additional Capital Contributions,
such Member's distributive share of profits, and the amount of any Company liabilities that are
assumed by such Member.
10
(b) To each Member's Capital Account there shall be debited the amount of
cash and the fair market value of any Property distributed to such Member pursuant to any
provision of this Agreement, such Member's distributive share of losses,and the amount of any
liabilities of such Member that are assumed by the Company or that are secured by any property
contributed by such Member to the Company.
(c) In the event any Membership Interest in the Company is transferred in
accordance with the terms of this Agreement,the transferee shall succeed to the Capital Account
of the transferor to the extent it relates to the transferred interest. If during the Company's fiscal
year, there is a change in a Member's Membership Interest, the Member's share of profits and
losses and distributions in that year shall be determined under a method which takes into account
the varying Membership Interest of the Member.
(d) The Capital Account shall also include a pro rata share of the fair market
value of any property contributed by a person who is not a Member, such value to be the same
value reported for federal gift tax purposes if a gift tax return is filed,and if not,the value in the
case of real property shall be determined by an independent M.A.I. appraiser actively engaged in
appraisal work in the area where such property is located and selected by the President, and
otherwise by the certified public accountant or accountants then serving the Company.
6.05 Profits and Losses. The profits and losses and all other tax attributes of the
Company shall be allocated among the members on the basis of the Members' Membership
Interest.
6.06 Distributions. All distributions of cash or other property (except upon the
Company's dissolution, which shall be governed by the applicable provisions of the Act and
Article IX hereof) shall be made to the Members in proportion to their respective Membership
Interests. Not later than 30 days after each calendar quarter within the Company's fiscal year,the
profit from the.prior quarter shall be calculated by the Treasurer, a written report given to each
Member and such profit, if any, shall be distributed to.each Member in accordance with each
Member's Membership Interest. Such profit shall be calculated by the Treasurer by accounting
for all revenues of the Company from any source, other than Capital Contributions, and
subtracting all expenses of the Company. All amounts withheld pursuant to the Code or any
provisions,of state Or local tax law with respect to any payment or distribution to the Members
from the Company shall be treated as amounts distributed to the relevant Member or Members
pursuant to this Section 6.06.
6.07 Allocations. Except as otherwise provided in Section 6.08 hereof, all items of
income,gain, loss, deduction and credit,whether resulting from the Company's operations, or in
connection with its dissolution, shall be allocated to the Members for federal, state and local
income tax purposes in proportion to their respective Membership Interests.
6.08 Allocation with Respect to Property. The Members recognize that the Members'
basis in the contributed property for federal income tax purposes may be less than the agreed fair
11
•
market valueof:such property. Therefore,the Members agree,pursuant to Section:704(c)of the
Code,that taxable gain is the'amount equal'to the difference,if any1 between the'Menibers'basis
in the property and the agreed fair market value of the property shall be allocated exclusively to
the Members upon the sale or other taxable disposition of the property.
•
• ARTICLE VII
RECORAS,.REPORTS,ETC..
7.01 Records: The Company shall maintain at its principal office and make available
to the Members its records to the extent provided in the Act. The President shall cause the
Company to keep at its principal office the following:
(a) a current list of the full name and last known business address of each
Member,in alphabetical order;
(b) a copy of the Articles of Organization and the Certificate of Organization
of the Company,and all Articles of Amendment and Certificates of Amendment thereto;
(e) copies of the Company's federal, state, and local income tax returns and
reports,if any,for the three most recent years;
(d) a copy of this Agreement,as amended;and
(e) copies of the Company's financial statements for the three most regent
years.
7.02 Financial and Operating State:Merits and Tait'Returns'. Within ninety (90) days
from the close of each fiscal year of the Company,the Treasurer shall cause to be delivered to
each Member a statement setting forth such Member's allocable share of all tax items of the
Company for such year, and all such other information as may be required to enable each
Member to prepare his federal, state and local income tax returns ih accordance with all then
applicable laws,rules and regulations. The Treasurer also shall cause to be prepared and filed all
federal,state and local income tax returns required of the Company for each fiscal year.
7.03 Rights of Inspection. During the term of the Company, the Treasurer shall keep,
or cause to be kept,full and faithful books of account,records and supporting documents,which
• shall reflect, completely, accurately, and in reasonable detail, each transaction of the Company
(including, without limitation, transactions with an officer, Members, or affiliates of the officer
or any Member). Each Member or its designated representative shall, upon five (5) business
• days' notice to the Treasurer,have access to such financial books,records,and documents,during
• business hours(business days,9:00 a.m.to 4:30 p.m.)and may inspect and make copies of any of
them at such Member's own expense.
12
7.04 Confidentiality. Each Member acknowledges that any business plan, marketing
plans and strategy, costs, budget and pricing information, and other Company material and
information are confidential and proprietary in nature and,subject to any final determination by a
court of competent jurisdiction that a Member must disclose any such material or information,
agrees not to disclose or communicate any of such material or information to any third party
except as reasonably required in connection with the conduct of the Company's business or each
membefs tax, accounting and financial or regulatory reporting purposes, and to use reasonable
efforts to prevent inadvertent disclosure of such material or information to any third party by its
employees and agents.
7.05 Title to.Property. Unless otherwise agreed by all Members,legal title to Company
property shall beheld in the name of the Company.
ARTICLE VIII
ASSIGNMENT:RESIGNATION
8.01 Assignment Generally.Except as provided in Article VIII of this Agreement,each
Member hereby covenants and agrees that he will not sell, assign, transfer, mortgage, pledge,
encumber,hypothecate or otherwise dispose of all or any part of his Membership.Interest to any
person, firm, corporation, trust or other entity without the unanimous written consent of the
Members. Upon receiving such consent, each Member agrees and covenants to first offer in
writing to sell such Membership Interest to the Company. The Company shall have the right to
accept the offer at any time during the 30 days following the date on which the written offer is
delivered to the Company. The consent of all the Members shall be required to authorize the
exercise of such option by the Company. If the Company shall fail to accept the offer within the
30 day period, such Membership Interest may, during the following 60 days, be disposed in
accordance with any applicable provisions of this Agreement,including,but not limited,to those
dealing with substitution of Members; provided, however, that the purchase price for such
interest shall not be less and the terms of purchase for such interest shall not be more favorable
than the purchase price and terms of purchase that would have been applicable to the Company
had the Company purchased the interest; and provided further that any interest not so disposed of
within the 60-day period shall thereafter remain subject to the terms of this Agreement.
Notwithstanding anything to the contrary,upon assignment of an entire Membership Interest,the
assigning Member shall cease to be a Member and no assignee of a Membership Interest shall
become a Member of the Company except upon the unanimous written consent of the non-
assigning Members. Upon the assignment of a portion of a Membership Interest, the assigning
Member shall continue to be a Member, though the assigning Member's Membership Interest.
shall be reduced, and no assignee of a portion of a Membership Interest shall become a Member
of the Company excepiupon the unanimous written consent of all of the Members,including the
assigning Member with the reduced Membership Interest.
13
8.02 Gilt to Family Member. Nettvithstanding Section 8.01, a Member shall not be
required.to offer to sell his Membership Interest.to the Company prior to transferring his
Membership Interest to his spouse or any.of his descendants,or to a trust the sole beneficiaries of
•
which are one or more of his spouse and Ins descendants,provided that such transfer is by way of
inter vivos gift or testamentary or intestate succession. However,notwithstanding the foregoing,
such transferring Member shall still be required to obtain the unanimous written consent of the
Members to such transfer and no assignee of a Membership Interest shall become a Member of
the Company except upon the unanimous written consent of the non-assigning Members.
8.03 Purchase of Certain Membership Interests.
(a) If a Buy-Out Event occurs with respect to any Member (the "Buy-out
Member"), the Company shall have the option to purchase the Buy-out Member's Membership
Interest upon the terms and conditions set forth in this Section 8.03. The term "Buy-out
Member" shall include a Buy-out Member's personal representative or trustee in bankruptcy,to
the extent applicable.
(b) Upon any Buy-out Event occurring to a Buy-out Member, the Buy-out
Member shall deliver written notice of the occurrence of such Buy-out Event to the Company.
The Company shall have the option, but not the obligation,to purchase the Buy-out Member's
Membership Interest at any time during the sixty(60),day period immediately following the date
on which it receives notice of the occurrence of the Buy-out Event Such option shall entitle the
Company to purchase such Membership Interest for the fair market value of such Membership
Interest. The fair market value of the interest shall be the amount that the Buy-out Member
would receive in exchange for his entire interest in the Company if the Company sold all of its
assets, subject to their liabilities, at their fair market value as of the date on which the Buy-out
Event occurred and distributed the net proceeds from such sale in complete liquidation of the
Company. The consent of all the Members, except for that of the Buy-out Member, shall be
•
required to authorize the exercise of such option by the Company. Such option must be
exercised by delivery of a written notice from the Company to the Buy-out Member during the
aforementioned period. Upon delivery of such notice the exercise of such option shall,be final
and binding on the Company and the Buy-out Member.
(c) If the foregoing option is not exercised,the business of the Company shall
continue,and the Buy-out Member shall retain his Membership Interest.
(d) The fair market value of the Buy-out Member's Membership Interest shall
be determined as expeditiously as possible by a disinterested appraiser mutually selected by the
Buy-out Member and the Company (the Company's selection being made by the President). If
the Buy-out Member and the Company are unable to agree on a disinterested appraiser,then the
Buy-out Member and the Company shall each select a disinterested appraiser and if the
disinterested appraisers selected are not able to agree as to the fair market value of the interest,
then the two disinterested appraisers shall select a third disinterested appraiser who shall
determine the fair market value. The appraisers shall be instructed that, in determining "fair
t4
market value,"they shall take into account the projected fiiture revenues of the Company for five
years after the occurrence of the Buy-out Event, assuming that its revenues and expenses during
the five year period after the Buy-out Event are identical to the revenues and expenses for the
twelve month period prior to the Buy-out Event. The determination of the fair market value of
the Buy-out Member's Membership Interest by the appraiser or appraisers shall be conclusive and
binding on all parties. All costs of an appraiser mutually selected by the Buy-out Member and
the Company or the two disinterested appraisers shall be shared equally by the Buy-out Member
and the.Company. All costs of an individually selected appraiser shall be borne by the parties
selecting such appraiser.
(e) If the option to purchase the Buy-out Member's Membership Interest is
exercised by the Company, then not later than thirty (30) days after the date on which the
appraisal described above is complete (the "Appraisal Date"), the Company shall make a
distribution of property (which may be cash or other assets of the Company) to the Buy-out
Member with a value equal in amount to the fair market value of the Buy-out Member's
Membership Interest;provided,however,that at the election of the Company such distribution to
the Buy-out Member may be made in five(5) equal annual installments,the first of which shall
be made on the thirtieth(30th) day after the Appraisal Date and one of which shall be made on
the same date in each of the four years thereafter, provided, further, however, that
notwithstanding an election by the Company to make the distribution to the Buy-out Member in
five equal annual installments, the Company may accelerate without penally all of such
installments at any time or any part of such installment at any time. If the Company elects to
make distributions to the Buy-out Member in five equal annual installments as provided herein,
the Company, in addition to such annual installments, shall pay the Buy-out Member additional
amounts computed as if the Buy-out Member were entitled to interest on the undistributed
amount of the total distribution to which the Buy-out Member is entitled hereunder at an annual
rate equal to the annual Federal,Medium-Term Rate in effect under Section 1274(d)of the Code,
as determined on the 30th day after the Appraisal Date,which additional amounts,computed like
interest, shall be due and payable on the same dates as the annual installments of the distribution
payable to the Buy-out Member hereunder. Any unpaid capital contributions of the Buy-out
Member and any damages occurring to the Company as a result of the Buy-out Event shall be
taken into account in determining the net amount due the Buy-out Member at the closing, and
any excess of such unpaid capital contributions or damages over the amount due at closing shall
be netted against subsequent installment payments as they become due.
(f) If at a time when the Company has an option to purchase a Buy-out
Member's Membership Interest, it is prohibited from purchasing all or any portion of such
Membership Interest pursuant to the Act or any loan agreement or similar restrictive agreement,
the Buy-out Member and the remaining Members shall, to the extent permitted by law, take
appropriate action to adjust the value of the Company's assets from book value to a fair valuation
based on accounting practices and principles that are reasonable under the circumstances in order
to permit the Company to purchase such Membership Interest. If the Company becomes
obligated to purchase a Buy-out Member's Membership Interest under this Section and the above
action cannot be taken or does not create sufficient value to permit the Company to do so, the
15
Company shall be obligated to purchase the portion of the Membership Interest it is permitted to
purchase,with a proportionate reduction in the aggregate purchase price.
(g) In order to fund any obligations under this Operating Agreement, the
Company or the Members may maintain such life insurance policies on the lives of one or more
Members as the Members determine from time to time to be desirable.
8.04 Additional Provisions on Transfer of Interests.
(a) Notwithstanding any other provision in this Article VIII,the Membership
Interest of a Member, in whole or in part, or any rights to distributions therefrom, shall not be
sold, exchanged, conveyed, assigned, pledged, hypothecated, subjected to a security interest or
otherwise transferred or encumbered, if, as a result thereof, the Company would be terminated
for federal income tax purposes in the opinion of counsel for the Company or such action would
result in a violation of federal or state securities laws in the opinion of counsel for the Company.
(b) If during the term of the Company,there is a deed of trust or other security
agreement in effect by which the Company is bound which provides or permits the holder of the
indebtedness secured thereby to accelerate the indebtedness in the event of sale,transfer or other
conveyance of a Membership Interest or any portion thereof,then without both the consent and
the unanimous approval of the Members no Member will be entitled to dispose of its
Membership Interest or any portion thereof.
(c) No disposition by a Member of its Membership Interest or any portion
thereof may be made except pursuant to registration under the applicable securities laws or the
opinion of counsel for the Company, prepared at the expense of the Member seeking make the
disposition, that such disposition may be effected without registration. These restrictions on
resale shall be fully set forth on any certificate representing the ownership of a Membership
Interest which may be issued by the Company and shall also be fully set forth in any transfer
records of the Company maintained in connection thereto.
(d) No disposition by a Member may be made if such disposition, either
considered alone or in the aggregate with prior dispositions by other Members, would result in
the Company being classified as a"publicly traded partnership"within the meaning of the Code,
(e) No disposition may be made to a minor or incompetent person except by
will, intestate succession, or gift under the Uniform Transfers to Minors Act or pursuant to the
terms of an inter vivos trust.
8.05 Members A,cquirinn Membership Interest from Company. No Person, other than
the initial Members,who acquire a Membership Interest from the Company,shall be admitted as
a Member of the Company,except upon the unanimous consent of the Members.
16
8.06 Resignation. No Member shall be entitled to resign from the Company except
upon the unanimous consent of the Members. Any attempted resignation without such consent
shall be of no force or effect
•
• 8.07 Effect of Prohibited.Action. Any transfer or other action in violation of this
Article VIII shall be void ab initio and of no force or effect whatsoever.
8.08 Rights of an Assignee. If an assignee of a Membership Interest is not admitted as
a Member because of the failure to satisfy the requirements of this Article,or any other pertinent
requirements of this Agreement, such assignee shall nevertheless be entitled to receive such
distributions from the Company as the assigning Member would have been entitled to receive
under Section 6.06 of this Agreement with respect to such Membership Interest had the assigning
Member not assigned such Membership Interest.
8.09 Substituted or Additional Members.
(a) Unless named in this Agreement or admitted to the Company pursuant to
this Agreement, no person, including the transferee or assignee of a Membership Interest or a
portion thereof,shall be a Member. However, upon the consent of all of the Members, a person
may be admitted to the Company as an Additional Member and receive an agreed upon
Membership Interest in the Company, which Membership Interest shall be transferred to such
Additional Member from each Member pro rata. The Company, each Member, and any other
person having business with the Company need deal only with Members so named and so
admitted;they shall not be required to deal with any other person by reason of any assignment by
a Member or by reason of the death of a member, except as otherwise provided in this
Agreement. In the absence of substitution of a member for an assigning,transferring or deceased
Member,any payment to a Member,or to its successors,executors or administrators,shall acquit
the Company of all liability to any other person that may be interested in such payment by reason
of an assignment by the member or by reason of its death,dissolution,or incompetency.
(b) An assignee or transferee of an entire Membership Interest may become a
substituted Member in place of its assignor or an assignee or transferee of a portion of a
Membership Interest may become an additional Member, only if all of the following conditions
are satisfied,in additions to other conditions set forth in this Agreement:
• (i) The requirements of this Agreement are met,including Article VIM
(ii) The instrument of assignment sets forth the intention of the assignor that
the assignee shall become a substituted Member in place of the assignor or an
additional Member with respect to that portion of the assignor's Membership
Interest
17
(iii) The assignor and assignee shall execute and deliver such other instruments
as the President may require, including written acceptance by the assignee of the
terms of the Agreement and the power of attorney.
(iv) The written consent of the other Members to the substitution, or to the
admission of an additional Member,as required pursuant to this Agreement,who
may act in their sole and absolute discretion,shall be obtained.
(v) The assignee shall have paid all reasonable fees and costs incurred by the
Company in connection with its substitution or addition as a Member as
determined by the President.
ARTICLE IX
DISSOLUTION AND TERMINATION
9.01 Events of Dissolution. The Company shall be disgolved upon the first to occur of
the following:
(a) Any event which under the Articles requires dissolution of the Company.
(b) The unanimous written consent of the Members to the dissolution of the
Company.
(c) The death,.permitted resignation, bankruptcy or dissolution of a Member
or the occurrence of any other event that terminates the continued Membership of such Member
in the Company unless within six months of the event the business of the Company is continued
by the unanimous consent of the remaining Members.
(d) The entry of a decree of judicial dissolution of the Company as provided in
the Act.
(e) Any event not set forth above which under the Act requires dissolution of
the Company.
9.02 'Liquidation. Upon the dissolution of the Company, it shall wind up its affairs and
distribute its assets in accordance with the Act by either or a combination of both of the
following methods as the Members shall determine:
(a) Selling the Company's assets and, after the payment of Company
liabilities, distributing the net proceeds therefrom to the Members in proportion to their
Membership Interests and in satisfaction thereof;and/or
1s
(b) Distributing the Company's assets to the Members in kind with each
Member accepting an undivided interest in the Comps-gig assets, subject to its liabilities, in
satisfaction of his Membership.Interest The interest conveyed to each Member in such assets
shall constitute a percentage of the entire interests in such assets equal to such Member's
Membership Interest.
9.03 Orderly Liquidation. A reasonable time as determined by the President, not to
exceed eighteen (18)months, shall be allowed for the orderly liquidation of the assets of the
Company and the discharge of liabilities to the creditors so as to minimize any losses attendant
upon dissolution.
(a) First, to the payment of the debts and liabilities of the Company and the
expenses of liquidation,including a sales commission to the selling agent,if any;then
(b) Second, to the setting up of any reserves which the President (or the
person or persons carrying out the liquidation) deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Company. At the expiration of such period as the
President(or the person or persons carrying out the liquidation) shall deem advisable, but in no
event to exceed 18 months, the Company shall distribute the balance thereof in the manner
provided in the following subsections;then
(c) Third, to the.Members to the extent of their respective positive Capital
Account balances in the ratio of said Capital Accounts, after first taking into account the
allocations prescribed by Section 9.04 below;then
(d) Fourth, to the Members in proportion to their respective Membership
Interests.
(e) In the event of a distribution in liquidation of the Company's property in
kind,the fair market value of such property shall be determined by a qualified and disinterested
M.A.T. appraiser actively engaged in appraisal work selected by the President (or the person or
persons carrying out the liquidation), and each Member shall receive an undivided interest in
such property equal to the portion of the proceeds to which he would be entitled under the
immediately preceding subsections if such property were sold at such fair market value.
9.04 Taxable Gain or Loss. Taxable income,gain and loss from the sale or distribution
of Company property incurred upon or during liquidation and termination of the Company shall
be allocated to the Members as provided in Section 6.07 above.
9.05 Recourse Against Members. Except as provided by law, upon dissolution, each
Member shall look solely to the assets of the Company for the return of his Capital Contribution.
If the Company property remaining after the payment or discharge of the debts and liabilities of
the Company is insufficient to return the Capital Contribution of each Member, such Member
shall have no recourse against any other Member.
19
ARTICLE X
MMIISCELLANEOUS PROVISIONS
I .
10.01 Attomevs' Fees. In the event any Member brings an action to enforce any
provisions of this Agreement, whether such action is at law, in equity or otherwise, and such
party prevails in such action, such Member shall be entitled, in addition to any other rights or
remedies available to it, to collect from the non-prevailing Members the reasonable costs and
expenses incurred in the investigation preceding such action and the prosecution of such action;
including but not limited to reasonable attorneys'fees and court costs.
10.02 Notices. Whenever,under the provisions of the Act or other laws the Articles or
this Agreement, notice is required to be given to any Person, it shall not be construed to mean
exclusively personal notice unless otherwise specifically provided,but such notice shall be given
in writing,by mail, addressed to the Company at its principal office from time to time and to any
other Person at his address as it appears on the records of the Company from time to time,with
postage thereon prepaid.Any such notice shall be deemed to have been given thee business days
after it is deposited in the United States mail.Notice to a Person may also be given personally or
by telecopy or electronic mail sent to his address as it appears on the records of the Company.
The addresses of the initial Members as shown on the records of the Company shall originally be
Those set forth in Article m.hereof. Any Person may change his address as shown on the records
of the Company by delivering written notice to the Company in accordance with this Section.
10.03 Application of Virginia LW. This Agreement,and the interpretation hereof,shall
be governed exclusively by its terms and by the laws of the Commonwealth of Virginia,without
reference to its choice of law provisions,and specifically the Act.
10.04 ,Amendments: No amendment or modification of this Agreement shall be
effective except in accordance with the provisions of this Agreement and unless approved in
writing as set forth in this Agreement.
10.05 Construction. Whenever the singular number is used in this Agreement and when
required by the context,the same shall include the plural,and the masculine gender shall include
the feminine and neuter genders,and vice versa
10.06 J-Ieadiogs. The headings in this Agreement are inserted for convenience only and
are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this
Operating Agreement or any provision hereof.
10.07 Waivers. No waiver of any provision of this Agreement shall be effective unless
the same shall be set forth in a writing signed by each party, and then only to the extent
specifically set forth therein. The failure of any party to seek redress for violation of or to insist
20
upon the strict performance of any covenant or condition of this Agreement ¢hall not prevent a
subsequent act,which would have originally constituted a violation,from having the effect of an
original violation.
10.08 Right§ and Remedies Cumulative. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party shall not preclude
or waive the right to use any or all other remedies. Such rights and remedies are given in
addition to any other rights the parties may have by law,statute,ordinance or otherwise.
10,09 Severability. If any provision of this Agreement or the application thereof to any
Person or circumstance shall be invalid,illegal or unenforceable to any extent, the remainder of
this Agreement and the application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
10.10 Heirs, Successors and Assigns. Each and all of the covenants,terms,provisions
and agreements herein contained shall be binding upon and inure to the benefit of the parties
hereto and, to the extent permitted by this Agreement, their respective heirs, legal
representatives,successors and assigns.
10,11 Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company.
10.12 Counterparts. This Agreement and any amendments thereto may be executed h
counterparts,each of which shall be deemed an original,but all of which shall constitute one and
the same instrument.
10.13 Entire Agreement, This Agreement sets forth all of the promises, agreements,
conditions and understandings between the parties respecting the subject matter hereof and
supersedes all prior negotiations, conversations, discussions, correspondence, memoranda and
agreements between the parties concerning such subject matter.
10.14 Reproductions. This Agreement and all other documents, instruments, and
agreements in the possession of the parties that relate hereto or thereto may be reproduced by any
party, and any such reproduction shall be admissible in evidence, with the same effect as the
original itself, in any judicial or other administrative proceeding, whether the original is in
existence. No party will object to the admission in evidence of any such reproduction,unless the
objecting person reasonably believes that the reproduction does not accurately reflect the
contents of the original and objects on that basis.
10.15 .Exhibits. Schedules and Attachments. The exhibits, schedules and attachments
attached to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein. If there is a conflict between the terms, conditions,
representations, warranties, and covenants contained in this Agreement and any exhibits,
schedules and attachments to this Agreement,then the provisions in this Agreement shall control.
21
10.16 Third Party Right. It is the intention of the parties that nothing in this Agreement
shall be deemed to create any right with respect to any person or entity not a party to this
Agreement or the successor or assign thereof.
10.17 Survival. Except as otherwise provided in this Agreement, all representations,
warranties,covenants and agreements made in this Agreement,and in any document,instrument,
agreement, assignment, certificate, or statement delivered pursuant hereto or in connection
herewith,shall survive the dissolution and final liquidation of the Company.
10.18 Investment Representation. Each Member, by executing this Agreement,
represents and warrants that it interest in the Company has been acquired by it for its own
account for investment and not with a view to resale or distribution thereof and that it is fully
aware that in agreeing to admit it as a Member,the other Members and the Company are relying
upon the truth and accuracy of this representation and warranty.
•
22
- EXIT BIT A
1 NAME CASFI.OR'PROPERTY/
Matthew C. Stimart $100
Susan C. Stimart $100
A-I •
The undersigned,being all the Members of the Company,hereby agree,acknowledge and
certify that the foregoing Agreement constitutes the sole and entire Agreement of the Company,
unanimously adopted by the Members of the Company as of the date first written above.
• MENII3ERS:.
Matthew C. Stimart
Susan C. Stimart
23
UNANIMOUS CONSENT OF MEMBERS
IN LIEU OF ORGANIZATIONAL MEETING
Pursuant to Chapter 12 of Title 13.1 of the Code of Virginia,the undersigned,being all
the Members of Challenger Way LLC,a Virginia limited liability company created on June
_17,2016 by Articles of Organization filed with the Virginia State Corporation Commission
(the "Company"),hereby consent,in lieu of the organizational meeting of the Company,to the
following actions:
WHEREAS,it is advisable for the Company to adopt an Operating Agreement to
establish the basis for taking actions and other matters;and
WHEREAS,it is necessary for officers of the Company to be elected by the Members;
and
WHEREAS,it is desirable for the Company to open and maintain bank and investment
accounts for the transaction of business.
NOW,THEREFORE,BE IT RESOLVED,that:
1. That certain Operating Agreement,in the form attached hereto as an exhibit(the
"Operating Agreement",hereby is approved by the Members,the execution thereof to be
conclusive evidence of their approval.
2. Matthew C.Stimart hereby is elected as President,and Susan C.Stimart hereby is elected
as Treasurer and Secretary,of the Company,pursuant to Article V of the Operating Agreement.
3. The Treasurer hereby is authorized to open and maintain bank and/or investment
accounts at . First Citizens Bank,and to execute and deliver such written
documentation as may be required for such purpose.
These actions are effective as of June_17_,2016.
MEMBERS:
i.,
Matthew C.Sti a
4119/
Susan C. Stimart
2
•
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